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Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.

Since its introduction in late November, the Bill has changed fairly little. Suggestions by the JCHR that the most controversial measures in the Bill – the Temporary Exclusion Order, which would prevent persons with a right of abode from entering the UK except on conditions set by the Secretary of State – might be replaced by a less draconian alternative system of notification that a named individual intended to return were not debated. The changes which the Government have accepted are perhaps unsurprising; responding to calls by both reporting Committees – and by the Independent Reviewer of Counter-Terrorism Legislation – for a degree of judicial oversight to be given to the new powers sought in the Bill:

Seizure of Passports (Part 1, Schedule 1)

The JCHR recommended that a new power to permit police officers and other border officials to seize passports and other travel documents should be subject to a substantive review by a court, after 7 days (Baroness Kennedy has tabled amendments to allow those proposals to be considered again tomorrow).

The Government has refused to concede that the grounds to retain these documents should be subject to statutory review. Ministers explain the Government view that the retention of these documents should not be treated similarly to the power to detain an individual or other counter-terrorism measures; emphasising that individuals would have recourse to judicial review if they wished to challenge the legality of any seizure. A requirement to apply for judicial approval for extended retention for longer than 14 days – where the police and the Secretary of State would be required to show that they were acting expeditiously – was confirmed. This review would not examine whether the grounds for seizure and retention were satisfied. However, the Government conceded an amendment to the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) to ensure that legal aid would be available in connection with extension hearings.

While clarity on legal aid where the police seek to hold travel documents for up to a month is welcome, the Government’s reluctance to accept that the legality of the original decision to seize and retain should be subject to automatic judicial oversight is regrettable. While the Bill provides for the power to be exercised only on “reasonable suspicion”, it is a power which will be exercised “on-the-spot” at a point of departure, with clear implications for the individual stopped at the gate. The new power is supplementary to many existing powers to limit the travel of terrorism suspects, including through the use of TPIMs. Access to judicial review is becoming increasingly difficult. As its ability to act as a realistic safeguard diminishes, the need for Parliament to consider clear statutory safeguards grows more stark.

Terrorism suspects and exclusion from the UK (Part 1)

In the original draft of the Bill, the Government proposed that a person could be subject to an entirely administrative Temporary Exclusion Order (“TEO”), subject again, only to judicial review.

To make a TEO now, the Bill provides that the Secretary of State must ask the court for permission in most cases. In cases certified by the Secretary of State as urgent, a TEO can come into effect without prior judicial authorisation, subject to approval by the court within 7 days.

Both of these judicial stages will require a court to consider whether the Minister’s decision is “obviously flawed” (Clause 3(6)). The Bill also provides that the judges will apply judicial review principles (Clause 3(5)) and that nothing in the Bill should be applied inconsistently with Article 6 ECHR. While, the Minister did not acknowledge Lord Pannick’s stated view that the standard of review would be the ordinary standard applied on judicial review, it will be for the courts to reconcile these conflicting statutory directions in a manner consistent with the protections in the Human Rights Act 1998 (See HL Deb 20 Jan 2015, 1262, and 1264-65).

The Bill now provides for a statutory mechanism for review of the legality of the order and the conditions imposed on an individual once they are back in the UK. Any challenge to the legality of the TEO from outside the UK must be by way of judicial review.

It was exceptional that the Government sought these powers on a largely administrative basis. It is unsurprising that the need for judicial oversight has been conceded. However, the limitations of the new provision for judicial oversight are worth noting. The permission of the court – or its approval of an urgent order – can be ex-parte and without notice. Even if notice is provided, it is clear that the proceedings can be subject to a closed material proceeding (“CMP”). So, even if an individual were aware of the proceedings and were able to instruct counsel from outside the country, they might never have an understanding of the Ministers’ reasons for seeking to exclude them from the UK, if only temporarily.

Ministers have conceded that if an individual faces a threat of torture in a third country, the Secretary of State should not make a TEO (HL Deb, 20 Jan 2015, Col 1309). While that limit is clear from the Human Rights Act 1998; Ministers resisted further statutory clarification. In an era when one of the major political parties seeks to repeal the HRA, that resistance might become more significant after the Bill becomes law.

Whether these measures are proportionate to the risk we face – and whether they will help to keep us safe in practice – has been subject to limited debate (see the HL Second Reading). Ministers have refused to accept further safeguards, including provision for a sunset clause to trigger automatic review of these measures in the future. However, , the Government will today propose amendments to expand the power of the Independent Reviewer of Counter-Terrorism Legislation, including a power to review these measures. Yet, it remains as yet unclear how, in future, the advisory role of the Reviewer will relate to the new Privacy and Civil Liberties Board created by the Bill.

Controversial measures will become law

So tomorrow’s debate will see Peers pose further challenge to the limited judicial oversight proposed for passport seizure; over the role of judges in supervising TPIMs imposing enforced relocation and questions raised over the impact of the Bill on individuals working in humanitarian assistance in unstable and dangerous parts of the world. A crucial amendment will seek to limit the impact of new Ministerial powers to direct public agencies to take steps to implement the Government Prevent programme; on the freedom of speech enjoyed by academic institutions. Regrettably, a substantial part of the debate will again see an attempt to introduce wholesale provisions to legalise the collection and retention of data about us all, without full parliamentary oversight.

Yet, both Houses have now conceded the principle that the most controversial measures in the Bill should become law. So, before the next election determines the make-up of our next Government, it is clear that it will have available to it an unprecedented power to exclude British citizens – and others with right of abode – from the UK for reasons of national security. Although that power may look somewhat different to that originally envisaged by the Prime Minister during the party conference season, it remains a major step.

Full JUSTICE background briefing on the Bill and its provisions is available here.

All of the amendments proposed to the Bill – and its current draft – are available here.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.